IN THE CASE OF:	  

		BOARD DATE:	  31 May 2012

		DOCKET NUMBER:  AR20110023918 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests:

* Revocation of the orders that transferred him to the Retired Reserve
* Reinstatement to an active Reserve status
* Extension of his mandatory removal date (MRD)
* Consideration for promotion to colonel (COL) by a special selection board (SSB)

2.  The applicant states his Officer Evaluation Report (OER) for the period 30 May 2009 through 4 March 2010 was delayed through no fault of his and, as such, was not seen by the Fiscal Year 2010 (FY10) Colonel Promotion Board.  His rating officials made too many administrative errors on the OER which delayed its inclusion in his promotion file for consideration by the promotion board.

3.  The applicant provides:

* email exchange with officials at the U.S. Army Human Resources Command (HRC)
* denial of an SSB from HRC
* contested OER
* Orders 11-178-0005 (transfer to the Retired Reserve)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)


CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 27 February 1961.  

2.  He was appointed, at 22 years of age, as a Reserve commissioned officer and executed an oath of office on 13 May 1983.  He served in a variety of stateside or overseas assignments, with multiple entries on active duty, and he was promoted to lieutenant colonel on 26 January 2004.  

3.  On 16 June 2004, HRC issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

4.  He entered active duty on 5 February 2005 in support of Operation Noble Eagle and he was honorably released from active duty on 5 April 2006.

5.  He entered active duty on 5 April 2009 in support of contingency operations and he was assigned to the 4th Sustainment Command, San Antonio, TX, as a mobilization team chief, in specialty 42H (Senior Human Resources Officer).

6.  During the month of March 2010, he received a change of rater OER that covered the rating period 30 May 2009 through 4 March 2010.  The OER was digitally signed by his officials on 6 and 24 May 2010 and by him on 2 June 2010. It was filed in his official records on 9 June 2010.  

7.  On 7 February 2011, the USAR Command notified him that he was considered by a mandatory Reserve Components Selection Board (RCSB) that convened in August 2010 for promotion to COL but he was not selected.   The results were officially released in December 2010.

8.  He was honorably released from active duty on 11 June 2011 by reason of completion of his required active service.

9.  On 27 June 2011, Headquarters, 63rd Regional Support Command published Orders 11-178-0005 ordering his release from the USAR and transfer to the Retired Reserve, effective 1 July 2011, by reason of attaining maximum authorized years of service. 

10.  In August 2011, by email to HRC, he requested an SSB contending that the missing OER – an above center of mass, signed by a General Officer – was missing from his records.

11.  On 27 September 2007, HRC officials disapproved his request for an SSB and referred him to this Board.
12.  He submitted various emails with his rating officials alerting them to some administrative errors on his OER, related to the height and weight.  

13.  References:

	a.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the
policies and tasks for the Army’s Evaluation Reporting System.  It states OERs will be forwarded to reach Headquarters, Department of the Army (HQDA), no later than 90 days after the ending day of the report.  The centralized selection, promotion, and school boards schedules will be closely monitored to ensure that eligible reports, both mandatory and optional, are forwarded to HQDA in sufficient time to be included in a Soldier’s board file.  Reports received at HQDA after the required amount of time or past a suspense date set for a selection board is not an automatic basis for appealing either the report or selection board results.  HQDA will process any valid report so as not to do disservice to the rated Soldier with an excessive amount of nonrated time

	b.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the USAR.  This regulation specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.   

	c.  Paragraph 3-19 also lists the following factors that will normally result in a material error determination; e.g., an officer is removed from a selection list after the next selection board considering the officers of his or her grade recesses.  If eligible, this person will be considered by the next regularly scheduled selection board.  An SSB will not be used when an administrative error was immaterial, or the officer in exercising reasonable diligence could have discovered and corrected the error or omission in the official military personnel file.

	d.  Army Regulation 140-10 (Army Reserve - Assignments, Attachments, Details, and Transfers) prescribes policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers.  Chapter 7 (Removal from Active Status) provides guidance, with some exceptions, for the removal of commissioned officers for maximum age and/or length of service.  Paragraph 7-2 (Length of service) of this regulation provides, in pertinent part, that LTCs will be removed upon completion of 28 years of commissioned service, if under age 25 at initial appointment.  The actual removal date will be within 30 days after the date of completion of the maximum years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received a change of rater OER covering the rating period 30 May 2009 through 4 March 2010.  The OER was digitally signed by his officials on 6 and 24 May 2010 and by him on 2 June 2010. It was filed in his official records on 9 June 2010.  It is clear that the OER was processed to standard within 90 days as outlined in Army Regulation 623-3. 

2.  The applicant seems to misunderstand the intent of the SSB.  In order to support an SSB, there must be a material error.  Material error in this context is one or more errors of such a nature that in the judgment of the reviewing official (or body) it caused an individual's non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The absence of this OER from his records is not a material error.  In fact, it appears the OER was filed in time for consideration by the August 2010 board.  He does not meet the criteria for consideration by an SSB. 

3.  Implicit in the Army's personnel system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The applicant – a senior human resources officer - knew or should have known of the date of his upcoming promotion board, and the option to write to the President of the promotion selection board.  His failure to exercise due diligence in managing his career does not establish an error by the Army. 

4.  The applicant's MRD is based on his date of entry, grade, and years of service.  As a LTC, the maximum years of service allowed for his grade is 28 years.  He was commissioned in May 1983 and he was transferred to the Retired Reserve in July 2011. 

5.  Since he does not qualify for an SSB and his MRD is correct, there is no reason to revoke his orders that transferred him to the Retired Reserve or reinstate him to an active Reserve status. 


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  __X_____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110023918



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ABCMR Record of Proceedings (cont)                                         AR20110023918



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